Nottingham v Attorney-General - [2023] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA291/2022
[2023] NZCA 122

BETWEEN	DERMOT GREGORY NOTTINGHAM First Applicant ROBERT EARLE McKINNEY Second Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Brown and Clifford JJ
Counsel:	Applicants in person S M Kinsler and C E Sinclair for Respondent
Judgment: (On the papers)	21 April 2023 at 11.00 am

JUDGMENT OF THE COURT

A The application for an extension of the time to apply for the allocation of a hearing date and file the case on appeal is declined.
BThe applicants must pay the respondent costs calculated for a standard interlocutory application on a band A basis, and usual disbursements.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application by Messrs Nottingham and McKinney pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) to be granted an extension of the time within which, pursuant to r 43(1), they must apply for the allocation of a hearing date and file their case on appeal.

Background

Messrs Nottingham and McKinney are self-represented individuals who had their substantive proceedings, brought to challenge the Government’s response to COVID-16, struck out.[1] Their appeal to this Court related to the costs award made against them (in favour of the Attorney-General) following the High Court’s decision to strike out those proceedings.[2]
[1]See Nottingham v Attorney-General [2022] NZHC 405.
[2]Nottingham v Attorney-General [2022] NZHC 1060.
Their notice of appeal was accepted for filing on 13 June 2022. Security for costs were fixed at $7,060 under r 35 of the Rules. They applied for security to be dispensed with on 16 August. That application was dismissed by the Deputy Registrar on 7 September. Rule 5A(3) provides for a judge to review such a decision pursuant to an informal application made within 20 working days of that date. The applicants applied for such a review on 21 September, within that 20-day period.
In the meantime, on 14 September the applicants’ appeal was deemed abandoned pursuant to r 43 of the Rules as they had failed to apply for a fixture or file the case on appeal within the three-month period stipulated by r 43. It is, we note, clear that the r 43 timeframe is not affected by the existence of an outstanding application to review a Registrar’s decision declining dispensation with security for costs, although that is not always appreciated by affected parties.[3]
[3]See for example McGuire v Secretary for Justice [2019] NZCA 512; and Nottingham v Maltese Cat Ltd [2018] NZCA 387.
Having been advised of the position, the applicants made this application for an extension of time to apply for the allocation of a hearing date and file the case on appeal pursuant to r 43(2) of the Rules.
Were we to grant that application, with the effect of “reviving” the applicants’ appeal that has been deemed abandoned, it would then be appropriate for a judge to consider the question of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nottingham v Attorney-General

Details

AGLC: Nottingham v Attorney-General [2023] NZCA 122
Case: [2023] NZCA 122
Decision Date: 21 April 2023 at 11.00 am

CaseChat Overview and Summary

The case of Nottingham v Attorney-General involves an application by Messrs Dermot Gregory Nottingham and Robert Earle McKinney, self-represented parties, for an extension of time to apply for the allocation of a hearing date and file their case on appeal in the Court of Appeal of New Zealand. The appeal pertains to the costs award made against the applicants following the High Court's decision to strike out their substantive proceedings, which were brought to challenge the Government’s response to COVID-19. Their appeal was deemed abandoned because they had failed to apply for a fixture or file the case on appeal within the stipulated three-month period under the Court of Appeal (Civil) Rules 2005.

The primary legal issue before the court was whether the applicants were entitled to an extension of time to apply for the allocation of a hearing date and file their case on appeal, which had been deemed abandoned. The court had to consider the factors relevant to granting an extension of time, including the length of the delay, the reasons for it, the conduct of the parties, and any prejudice or hardship to the respondent. The court also had to determine whether the proposed appeal was genuinely arguable and whether there was a public interest in granting the extension.

The court found that the applicants were well-acquainted with the applicable appellate processes and had been reminded of their obligations on multiple occasions. Despite the fact that their application to dispense with security for costs had not been determined, the court held that this did not excuse their failure to comply with the rules. The court concluded that the proposed appeal lacked merit and that the interests of justice did not favour granting leniency to the applicants. The appeal was deemed rightly abandoned, and the application for an extension of time was declined.

As a result, the court ordered that the applicants pay the respondent costs calculated for a standard interlocutory application on a band A basis, along with the usual disbursements. This decision underscores the importance of adhering to the procedural requirements of the Court of Appeal and highlights the court's reluctance to grant extensions of time in cases where the applicants have failed to diligently prosecute their appeals.

Orders